Terms of Trade

  1. Definitions
    Unless the context requires otherwise:
    1.1. "Buyer" means the buyer of the Goods.
    1.2. “Contract” means a contract for the supply of Goods by Seller to Buyer.
    1.3. “Default Event” means any of the following:
    1.3.1. Buyer does not make a payment due to Seller under a Contract or otherwise;
    1.3.2. Buyer is unable to pay its debts as and when they fall due;
    1.3.3. Buyer ceases or suspends conduct of its business, or threatens to do so;
    1.3.4. a resolution is passed or proposed or a summons is presented to wind up Buyer;
    1.3.5. a receiver and/or manager or other form of insolvency administrator is appointed over all or part of Buyer’s assets;
    1.3.6. Buyer makes or proposes to make any arrangement with its creditors in relation to its debts;
    1.3.7. Buyer commits an act of bankruptcy; or
    1.3.8. execution is levied on any of Buyer’s assets.
    1.4. “Delivery” means the passing of possession of Goods by or on behalf of Seller to Buyer or its agent; and "Deliver" has a corresponding meaning.
    1.5. “Dispatch” means the loading of Goods for departure from Seller’s premises.
    1.6. “Dispute” has the meaning given in paragraph 14.1.
    1.7. “Ex Works” means delivery on the basis defined in INCOTERMS 2020 but excludes GST.
    1.8. “FIS” means Delivery Free Into Store and includes all transport costs to Buyer’s agreed Delivery address in Australia but excludes GST.
    1.9. “Goods” means goods or services provided by Seller, including but not limited to the Macnaught, Lubemate, Retracta, STM and LockNLube brands.
    1.10. GST means goods and services tax under the GST Law, as that expression is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth); and a term or expression starting with a capital letter which is defined in the GST Law but not defined in these terms has the same meaning as in the GST Law.
    1.11. “Order Confirmation” means the document as defined in paragraph 3.3.
    1.12. “PPSA” means Personal Property Securities Act 2009 (Cth).
    1.13. “Purchase Order” means a document from Buyer to Seller that includes:
    1.13.1. a unique identifying number;
    1.13.2. a list of Goods that Buyer wishes to purchase from Seller;
    1.13.3. the quantity and price of each listed Good that Buyer wishes to purchase from Seller;
    1.13.4. the requested date of Delivery of the Goods at a specified Delivery address in Australia.
    1.14. “Seller” means Macnaught Pty Ltd (ACN 000 075 785 / ABN 66 000 075 785).
    1.15. "Terms" means the terms and conditions of trade set out in this document.2.
  2. Contract Terms
    Unless the context requires otherwise:
    2.1. Unless expressly agreed in writing by Seller, every Contract is subject to these Terms.
  3. Ordering
    3.1. Buyer will provide Seller with a Purchase Order stating the Goods that Buyer wishes to acquire from Seller.
    3.2. Every Purchase Order for Goods shall be deemed to be an offer by Buyer to purchase Goods on these Terms and is subject to acceptance by Seller. Seller may choose at its sole discretion not to accept a Purchase Order (in whole or in part) for any reason.
    3.3. Upon acceptance of a Purchase Order, Seller will notify Buyer, by email or facsimile, whether it accepts the Purchase Order and stating the estimated Dispatch date (Order Confirmation). 
    3.4. Seller may require Buyer to acknowledge receipt of the Order Confirmation by signing and returning it to Seller before Seller commences work or supply. Delays by Buyer will entitle Seller to adjust the estimated Dispatch date.
  4. Payment, Credit and Price
    4.1. All sales are subject to such limits as to minimum quantity or cash value of order as Seller fixes from time to time.
    4.2. Unless otherwise agreed, the price for Goods will be Seller’s list price in effect at the time of Dispatch less any applicable discounts that Seller has agreed in writing to provide to Buyer.
    4.3. The purchase price for Goods is payable in full:
    4.3.1. before the Dispatch of the Goods to Buyer; or
    4.3.2. if Seller has agreed in writing to provide credit terms to Buyer, in accordance with those credit terms.
    4.4. At its sole discretion without reason or notice, Seller may withdraw any credit or limit the amount of credit extended to Buyer at any time.
    4.5. All prices as itemised on Seller’s list, or otherwise quoted prices, are exclusive of GST.
    4.6. If a Default Event occurs, at Seller’s option, Seller may withhold further deliveries of Goods and/ or withdraw any credit facilities.
    4.7. If Buyer owes any amount to Seller (whether under a Contract or otherwise), Seller, at its sole discretion and without prejudice to any of its other rights, may do any or all of the following:
    4.7.1. withhold some or all future supplies of Goods until the amount has been paid in full;
    4.7.2. set-off that amount against any amount owing by Seller to Buyer; or
    4.7.3. require payment for all future supplies of Goods to be made in cash before
    manufacture or Dispatch of the Goods.
  5. GST
    5.1. Any consideration or payment obligation under a Contract or these Terms is exclusive of GST (GST Exclusive Consideration).
    5.2. If a Supply made by the Seller under or in connection with these Terms or a Contract is a Taxable Supply, the GST Exclusive Consideration for the Supply payable by the Buyer is increased by an additional amount equal to the amount of that GST Exclusive Consideration multiplied by the applicable GST rate (Additional Amount) and the Seller will issue a Tax Invoice.
    5.3. If the amount of GST payable by the Seller differs from the Additional Amount as a result of an Adjustment Event or otherwise, the Additional Amount will be adjusted accordingly, taking into account previous adjustments under this clause except that the Additional Amount is not to be reduced unless the Seller is entitled to a corresponding refund or Input Tax Credit.
    5.4. Unless stated otherwise in these Terms, when determining the amount of a payment under these Terms, if a party is entitled under these Terms to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with these Terms, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost to the extent that the party being reimbursed or indemnified, or a representative member of a GST Group of which they are a member, is entitled to claim an Input Tax Credit.
  6. Delivery
    6.1. Unless otherwise agreed, Seller will Deliver the Goods to Buyer Ex Works.
    6.2. If agreed by Buyer, Seller will organise freight on behalf of Buyer and Buyer will pay a delivery fee as notified by Seller.
    6.3. If the Goods are sold ex Seller’s store, Buyer must collect the Goods at its cost and risk on the agreed collection date or, if no time is agreed, within ten (10) days after notification that the Goods are ready for collection.
    6.4. If Buyer does not collect the Goods within the required time specified in paragraph 6.3; at its option, Seller may:
    6.4.1. Deliver the Goods to Buyer at Buyer’s cost, in which case the Delivery will be taken to be a Delivery pursuant to these Terms; or
    6.4.2. treat Buyer as having cancelled the Purchase Order and invoice Buyer for an amount determined in accordance with paragraph 10.7.
    6.5. Where an estimated Dispatch date cannot be met by Seller, Buyer will be notified of a new estimated Dispatch date as soon as practicable.
    6.6. Risk in the Goods shall pass to Buyer upon Delivery. 
    6.7. Buyer’s representative must be present at the Delivery address at the time the Goods are Delivered. The representative must sign the delivery advice presented on behalf of Seller.
    6.8. Seller may Deliver the Goods even if Buyer’s representative is not present by leaving them at the Delivery address or otherwise agreed between the partes.
    6.9. If Delivery is by instalments of Goods, each instalment will be treated as a separate Contract. If Seller fails to Dispatch an instalment of Goods by the estimated Dispatch date or fails to Deliver it at all, Buyer is not entitled to terminate the Contract as to any other instalment.
    6.10. Where Goods are purchased for delivery or use outside Australia:
    6.10.1. You are solely responsible for ensuring that the importation, use and/or resale of the products comply with all laws, regulations and standards applicable in the country of destination or use.
    6.10.2. We make no representation or warranty that the Goods comply with any laws safety standards, or regulatory requirements outside Australia.
    6.10.3. Any use of the Goods outside Australia is entirely at your own risk and to the full extent permitted by law, we accept no liability for any loss, damage, or injury arising from such use.
    6.10.4. You are responsible for all customs duties, taxes, import charges and compliance with local laws associated with the importation or use of the Goods.
    6.11. Subject to paragraph 6.9 Buyer may terminate a Contract if Seller fails to Dispatch the Goods within seven (7) days after written notice from Buyer to do so, given on or after the estimated Dispatch date.
    6.12. If Seller fails to Deliver any Goods to Buyer on time or at all, Seller’s only obligation is to refund to Buyer any amount received from Buyer for the goods not Delivered. Seller will not be liable for any costs, damage or other loss to Buyer or any other party suffers arising directly or indirectly from Seller’s failure to Deliver the Goods on time or at all, whether or not due to Seller’s or its agent’s negligence.
  7. Acceptance
    7.1. Buyer must inspect the Goods immediately upon Delivery. Buyer must within seven (7) days after the date of inspection give written notice to the Seller, with particulars, of any claim that the Goods are not in accordance with the Contract.
    7.2. If Buyer fails to give that notice, then to the extent permitted by statute the Goods must be treated as having been accepted by Buyer and Buyer must pay for the Goods in accordance with these Terms.
  8. Returns
    8.1. Buyer must not return any Goods which Buyer claims are not in accordance with the Contract (whether or not the Goods are treated as accepted by Buyer) unless Seller has first given its written approval to their return. Their return must then be with freight and cartage prepaid by Buyer.
    8.2. If Seller has given its written approval for the return of Goods treated as accepted under clause 8.1:
    8.2.1. Seller will only give credit for the Goods returned if they are in a saleable condition;
    8.3. Seller may charge a handling charge as notified by the Seller, unless Buyer is a “consumer” for the purposes of the Competition and Consumer Act 2010 (Cth);
    8.4. Seller may charge Buyer for any bank charges or administration charges (if applicable).
    8.5. If Seller has given its written approval for the return of Goods which are not treated as accepted by Buyer under clause 8.1, Seller must refund the freight and cartage to Buyer if Buyer’s claim that the Goods are not in accordance with the Purchase Order is found to be valid.
  9. Retention of Title
    9.1. A term that is used in italics in this paragraph 9 has the same meaning as in the PPSA.
    9.2. Title to all Goods remains with Seller until Buyer pays to Seller all amounts (including interest) Buyer owes to Seller on any account.
    9.3. Until Seller has received full payment of all monies due in accordance with these Terms:
    9.3.1. Buyer will keep the Goods as a fiduciary for Seller, mark them to show Seller’s interest in the Goods and, on request, deliver them up to Seller; and
    9.3.2. If Buyer fails to pay any amount due to Seller on its due date, Seller will be entitled to enter the premises of or in the control of Buyer without notice, to take possession of the Goods. 
    9.4. Buyer may not sell the Goods except:
    9.4.1. prior to the registration commencement time, to a third party in the ordinary course of its business; or
    9.4.2. after the registration commencement time, as permitted by the PPSA.
    9.5. If any Goods are sold or otherwise disposed of by Buyer before title passes, and Buyer receives proceeds of the sale or receives any other proceeds, whether tangible or intangible, direct or indirect, of any dealing with the Goods (including any proceeds from insurance claims), then:
    9.5.1. prior to the registration commencement time, Buyer holds the proceeds on trust for Seller; and
    9.5.2. after the registration commencement time, Buyer grants to Seller a security interest in those proceeds (both as proceeds of the Goods and as original collateral), up to the amount Buyer owes to Seller, whether for the Goods or on any other account, and Buyer must immediately on receipt pay that amount to Seller.
    9.5.3. Buyer will hold all proceeds, and property purchased with the proceeds, separately on trust for Seller, account to Seller for the proceeds, and assign to Seller the benefit of any claim against the third party for the proceeds. Seller may recover as a debt due under the invoice all its cost and expense exercising its rights under this paragraph 9.
    9.6. Every payment to Seller in respect of the Goods must be taken to be a payment:
    9.6.1. firstly, of the amounts held by Seller in trust or, subject to a security interest, to the extent that the security interest is not a purchase money security interest;
    9.6.2. secondly, of amounts subject to a security interest to the extent that it is a purchase money security interest;
    9.6.3. thirdly, for any Goods that Buyer has sold but for which it has not received proceeds; and
    9.6.4. fourthly, for whatever Goods that Buyer has not sold as Seller elects.
    9.7. If a Default Event occurs:
    9.7.1. any right of Buyer to sell or otherwise dispose of the Goods, or part with their possession, immediately terminates; and
    9.7.2. without notice to Buyer and without prejudice to any of Seller’s other rights, Seller may recover and/or re-sell the Goods or any of them and may enter Buyer’s premises by its servants or agents for that purpose. Buyer indemnifies Seller for all claims, actions, suits, demands, orders for costs or damages relating to or arising out of such entry.
    9.8. If, at any time after the registration commencement time, Seller retains legal title to the Goods as contemplated by this paragraph 9, Buyer acknowledges and agrees that:
    9.8.1. this paragraph 9 creates a security interest in all present and after acquired Goods as security for Buyer’s obligations to Seller;
    9.8.2. Seller is a secured party in relation to the Goods and any proceeds of the Goods, and is entitled to register its interest on the register established under the PPSA as a security interest or, to any extent, a purchase money security interest, at the discretion of Seller;
    9.8.3. Seller may, by notice to Buyer, require Buyer to take all steps that Seller considers necessary or desirable to ensure its security interest in the Goods is enforceable, and to perfect, or better secure the position of Seller under these Terms as a first ranking security;
    9.8.4. Buyer must comply with a notice from Seller under this provision at the cost and expense of Buyer;
    9.8.5. Buyer must promptly inform Seller of any change to information that it provides to Seller under this provision; and
    9.8.6. Seller is not obliged to give any notice or provide copies of any documents under the PPSA (including notice of a verification statement) unless the notice is required by law and cannot be excluded.
  10. Warranty and Liability
    10.1. Seller warrants:
    10.1.1. that the Goods will be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable; and
    10.1.2. that the Goods will conform to the description shown on Seller’s invoice at the date of the Contract.
    10.2. Except as set out in paragraphs 10.1 and 10.3, Seller:
    10.2.1. excludes all conditions and warranties in relation to the Goods whether imposed or implied by statute or otherwise; and 
    10.2.2. will not be liable for any loss, damage or injury including loss of profits and consequential loss, arising from the condition, supply or use of the Goods, or out of Seller’s breach or performance of the Contract, whether or not caused by Seller’s negligence.
    10.3. These Terms include terms implied by any statute, which cannot be lawfully excluded including those implied by Schedule 2 Part 3-2 Division 1 of the Competition and Consumer Act 2010 (Cth). However, in relation to the supply of goods or services, which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Seller’s liability for breach of those terms (other than Schedule 2 section 51 of the Competition and Consumer Act 2010 (Cth)) will be limited, at its option, to any one or more of:
    10.3.1. in the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and in the case of services, supplying the services again or payment of the cost of having the services supplied again.
    10.4. Buyer acknowledges that it has exercised its independent skill and judgment in acquiring the Goods and has not relied on any advice or representation by Seller or any description, illustrations or specifications contained in any document produced by Seller which have not been expressly identified as descriptors of the Goods in a Purchase Order accepted by Seller.
    10.5. Buyer will be taken to have waived any claim which it may have against Seller unless:
    10.5.1. Buyer gives Seller written notice of the claim within seven (7) days after Delivery of the Goods; and
    10.5.2. Seller is given a reasonable opportunity to investigate the claim.
    10.6. Regardless of anything else in the Contract, Seller will not be liable to Buyer for Seller’s failure to comply with the Contract due to any cause beyond Seller’s reasonable control. Seller’s obligation to comply is suspended while the cause continues to hinder or prevent Seller’s performance.
    10.7. Buyer will be liable to Seller if Buyer wrongfully terminates this Contract or refuses to accept all or part of the Goods. If the Goods have been, or are in the process of being, made specifically for Buyer, Buyer must pay to Seller as liquidated damages the full contract price of the Goods and any additional cost incurred by Seller as a consequence of Buyer’s termination or refusal, less the current scrap value of the Goods as determined by Seller.
    10.8. The parties agree to the following:
    10.8.1. Buyer must notify Seller in writing within twenty-four (24) hours of becoming aware of any third party product liability claim, or any circumstance which may result in such a claim, concerning Goods (including a claim alleging defective Goods or any loss, injury or death arising from the use of the Goods). Buyer promptly must give Seller copies of all correspondence in relation to the claim;
    10.8.2. Buyer will provide all assistance reasonably requested by Seller in relation to any legal proceedings referred to in paragraph 10.8.1; and
    10.8.3. Buyer may admit liability in relation to any such claim or proceedings only as directed or permitted by Seller.
    10.9. The Buyer acknowledges that these Terms of Trade and any specific product warranty documents provided to you with this document have been read and understood, and Buyer agrees to be bound by them.
  11. Indemnity
    11.1. Subject to paragraph 11.2 Buyer indemnifies Seller and its officers, employees and agents against all claims, losses and expenses (including legal costs on a full indemnity basis), suffered or incurred by the other party arising out of or in connection with the distribution of Goods under these Terms.
    11.2. The indemnity in paragraph 11.1 is subject to the condition that the Seller seeking the indemnity must promptly notify the Buyer on becoming aware of any potential claim, loss or expense.
  12. Variations
    12.1. Seller at its absolute discretion may accept alterations to orders after Order Confirmation has been sent.
    12.2. If Buyer cancels all or part of any order for Goods being made specifically for Buyer:
    12.2.1. before Seller has started producing the Goods, Buyer must pay Seller as liquidated damages an amount equal to 10% of the price of the cancelled
    Goods; or
    12.2.2. after Seller has started producing the Goods, Buyer must pay Seller as liquidated damages the full price of the Goods cancelled, less the current scrap value of the Goods as determined by Seller. 
  13. Confidentiality
    13.1. Buyer must hold as confidential, and not divulge any information received in confidence from Seller, unless the information is in the public domain through no act or omission of Buyer.
  14. Dispute Resolution
    14.1. No party may commence court proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute in respect of, or arising under, these Terms (Dispute) unless it has first complied with this paragraph 14.
    14.2. A party claiming that a Dispute has arisen must notify the other party in writing.
    14.3. Within seven (7) working days after a notice is given under paragraph 14.2 the Dispute will be referred to the Chief Executive Officer of Seller and the Chief Executive Officer of Buyer to enable them to seek a mutual resolution through discussion and negotiation. If the Dispute is not resolved within thirty (30) days after a notice is given under paragraph 14.2, (or such longer period as the parties may agree) then the Dispute will be dealt with in accordance with paragraph 14.4.
    14.4. If a Dispute is not resolved within the thirty (30) day period referred to in paragraph 14.3, the Dispute must be referred to a mediator nominated by the then current Chief Executive Officer of the Australian Commercial Dispute Centre (ACDC) or that officer’s nominee. This mediation will be conducted in Sydney in accordance with the ACDC rules and mediation guidelines. If the Dispute cannot be resolved by mediation within a period of thirty (30) days from the date on which a mediator is appointed, either party may commence court proceedings.
  15. Miscellaneous
    15.1. No sale shall be by sample, even if a sample was inspected by Buyer or exhibited by Seller.
    15.2. A No failure by Seller to enforce any right shall give rise to any release or waiver or permit the Buyer to commit any subsequent breach of any obligation to the Seller.
    15.3. Unless Seller agrees in writing to the contrary, these Terms prevail over the terms of Buyer’s Purchase Order or any other terms sought to be imposed by Buyer.
    15.4. These Terms are governed by and are to be construed in accordance with the laws applicable in New South Wales, Australia in respect of any dispute, claim or proceeding arising out of or in connection with these Terms of Trade or any Goods supplied.
    15.5. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
    15.6. These Terms may be varied only if Seller agrees in writing.
    15.7. Nothing in these Terms shall affect Buyer’s statutory rights.
    15.8. All intellectual property rights in the Goods belong to Seller or its suppliers absolutely. Buyer must not modify, manufacture or reverse engineer the Goods or make or distribute copies of the Goods.
    15.9. If any term or provision of these Terms is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms had been agreed with the invalid illegal or unenforceable provision eliminated.
    15.10. Buyer authorises Seller to make reasonable enquiries of Buyer, and agrees to provide all information reasonably required by Buyer, to check and verify its creditworthiness.
  16. Disclosure of Key Terms relating to the supply of goods or services to
    consumers in New South Wales (NSW).
    Section 47A Fair Trading Act 1987 (NSW) (“the Act”) Pursuant to section 47A of the Act, a supplier must, before supplying a consumer with goods or services in NSW, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer. The following contains a summary of key terms in the attached Trading Terms between Macnaught Pty Ltd (Us, We, Our) and the Buyer (You), which the Buyer should be made aware of as per the requirements of the Act. Words not defined in this summary have the same meaning as set out in the Terms: 
    16.1. Exclusion of Warranties (clause 10) This clause excludes all warranties not set out in the Terms or any other warranty document (to the extent possible) and makes clear that We are not liable to compensate the Customer for:
    (a) Any increased costs or expenses the Customer may incur;
    (b) Any loss of profit, revenue, business, contract or anticipated savings;
    (c) Any loss or expense resulting from a claim by a third party; or
    (d) Any special, indirect or Consequential Loss or damage of any nature.
    16.2. Limitation of Liability (clause 10.3)
    This clause limits the remedies available to the Customer if the Goods or services provided by The Company are faulty, for example we may replace the Goods or provide a refund at the Company’s election. This clause also seeks to limit the timeframe for any claim by The Customer relating to the short delivery of Goods.
    16.3. Indemnity (clause 11) This clause requires The Customer to indemnify The Company against any loss or damage We may suffer as a result of the Customer’s breach of the Company’s Trading Terms, which means The Customer will pay the Company any loss or damage We suffer.
    16.4. Privacy
    Please refer to the Macnaught Privacy Policy.